$10] or notice of such forfeiture or of such out- | commonwealth, and have the same standing title. The plaintiff's objection having been overruled, and a verdict having been rendered by direction of the court for the defendants, judgment was entered that the plaintiff take nothing by his action. The controlling question in this case relates to the validity under the Constitution of the United States of certain provisions in the Constitution and statutes of West Virginia for the forfeiture of lands by reason of the failure of the owners during a given pericd to have them placed upon the proper land books for taxation. charged with all taxes and damages in The Constitution of West Virginia provides who shall have discharged *all taxes duly as-[418] By the 1st section of an act of the general sessed and charged against him, her or them assembly of Virginia, passed February 27, upon such lands, and all taxes that ought to 1835, further time was given until July 1, have been assessed and charged thereon 1836, for the redemption of all lands and lots from the time when he, she or they acquired theretofore returned as delinquent for the his, her, or their title thereto, whether legal nonpayment of taxes, west of the Alleghany or equitable; Provided, That nothing in mountains, and which had become vested on this section contained shall be so construed the previous 1st day of October in the presi- as to impair the right or title of any person dent and directors of the literary fund; saving the title of any bona fide occupant claiming under a junior grant. whose rights were protected and secured under prior legislation. That act further provided: "And whereas it is known to the general assembly that many large tracts of lands lying west of the Alleghany mountains which were granted by the commonwealth before the 411 first day of April, 1831, never were, or have not been for many years past, entered on the books of the commissioners of the revenue where they respectively lie; by reason whereof no forfeiture for the nonpayment of taxes has occurred, or can accrue, under the existing laws, the commonwealth is defrauded of her just demands, and the settlement and improvement of the country is delayed and embarrassed; for remedy whereof, or persons who have obtained grants from Other acts were passed in Virginia relating The first case in which the supreme court of appeals of Virginia had occasion to pass upon the validity of the above statute of 1835, so far as it forfeited lands which the owner failed to have put on the proper land books and pay taxes upon, was Staats v. Board, 10 Gratt. 400, 402, decided in 1853. "2. Be it enacted, That each and every That court said: "It further seems to the owner or proprietor of any such tract or court that, as by the act of March 23, 1836, parcel of land shall, on or before the first day Sess. Acts, p. 7, time was allowed from the of July, 1836, enter or cause to be entered on 1st day of November, 1836, for all persons to the books of the commissioners of the revenue cause their omitted lands to be entered with for the county wherein any such tract or the commissioner of the revenue, and to pay parcel of land may lie, all such lands the taxes thereon, in the manner prescribed in now owned от claimed by him, her the second section of the act of February 27, or them, through title derived mediately 1835, the forfeiture became absolute from or immediately under grants from the and after the 1st of November, 1836. That That he had honestly, faithfully, and im- of the United States who should wilfully partially discharged his duties, being espe- violate any provision of the Civil Service act cially well equipped and qualified to dis-or of the rules established by the Civil Service charge all the duties appertaining to his of- Commission should be dismissed from office; fice; That under the law the plaintiff had a vested interest in his office, and if White should remove him therefrom or assist in so doing it would be in violation not only of the Civil Service rules but of the plaintiff's vested interest in his office, for which he would not have an adequate remedy at law; That the defendant White, collector of internal revenue, had declared his intention to appoint a gauger and three storekeepers to fill the place of the plaintiff and others employed at the distillery at an early date; That the defendants Hoult, Sutton, Staubley, and Thayer had been reinstated, or would be appointed and commissioned, and one of them would be assigned to duty in place of the plaintiff at the Hannis distillery through White, who had openly declared his intention to reinstate the defendants in place of the plaintiff and others; That the plaintiff is a Democrat in politics, was assigned to said office as a Democrat, and had voted the ticket of that political party, while the defendant White was a Republi can; That White had declared his intention to place one of the other four defendants in plaintiff's position because of the latter's political affiliation, and for no other reason, and to appoint and recommend Republicans to fill such places for no other reason than that they were of that political faith; That the plaintiff's office is in the classified service, and belongs to what is known as the Civil Service, and as such he could not be removed, except for cause shown and proved; That by a circular issued by the Secretary of the Treasury it was provided that no removals should be made from any position subject to competitive examination except upon just cause and upon written charges filed with the head of the department or the appointing officer, of which the accused should have full notice and opportunity to make defense; That in department circular No. 119, which was an executive order, the same provisions were made, together with others, and were signed by the Acting Commissioner of Inter[368]nal *Revenue and approved by the Secretary of the Treasury; That the plaintiff was one of the employees of the Treasury Department, was included in the classified service, and was protected from removal for political or religious reasons under the Civil Service laws and rules of the United States, as fully appears from a communication received from the acting president of the Civil Service Commission of date September 10, 1897; That if the defendant White be permitted to remove the plaintiff from his office and position or supplant him by others, the same would be illegal and in violation of law; That he is able, competent, and willing to discharge the duties of his office, and is unwilling to be summarily dismissed therefrom for no other reason than that he is of opposite politics to those of the defendant White, collector of internal revenue; That the said collector has no power, right, or authority to remove the plaintiff from his office, or to appoint any other to take his place and thereby effect his removal; that the defendants Hoult, Sutton, Staubley, and Thayer have no right or authority to take the oath of office and otherwise qualify and appear to take the position, and thereby assist in the removal of the plaintiff, and as[369] there were no vacancies created either by removals or resignations, and there being 15 per cent now commissioned more than suffi cient to perform the duties of storekeepers and gaugers in that district, if they were per mitted so to do it would be in violation of law as well as of the rights and vested interests of the plaintiff; and, That unless White be enjoined from so doing he will remove the plaintiff, and unless his codefendants are enjoined from qualifying as officers of the United States to take the place of the plaintiff at the distillery they would in that manner effect the removal of the plaintiff from his office, they having expressed their intention to accept such appointment and assignments. The relief asked was an injunction restraining and prohibiting the defendant White, collector, and all others by and through him, "from removing him from the position of gauger until a vacancy is created according to law, as an officer of the United States aforesaid, and also from recommending, assigning, and appointing any person to the same position, and from proceeding in the attempt to make such removal, and in any other manner interfering with your complainant;" and also, that Hoult, Sutton, Staubley, and Thayer and all other persons be enjoined, restrained, and prohibited "from qualifying as gauger to take the place of your complainant at said distillery, or ir any other way aid or assist in the removal of your said orator, or performing or discharging any of the duties of said office," and for such other and general relief as to equity might seem just and right. That rule 2 of § 3 of the Civil Service rules provides that "no person in the executive In conformity with the motion by the Civil Service shall dismiss or cause to be dis- plaintiff for a temporary restraining order, missed or make any attempt to procure the it was adjudged, ordered, and decreed "that dismissal of or in any manner change the of- A. B. White, United States collector of inficial rank or position of any other person ternal revenue for the district of West Virtherein because of his political or religious ginia, be and is hereby restrained, enjoined, affiliations;" while § 1 of those rules provides and inhibited from recommending, appointthat any person in the executive Civil Servicel ing, or aiding in the appointment of A. L Hoult, John D. Sutton, Anthony Stroubley, the plaintiff be relieved from duty as gaug or any other person, to said position, and from er at that distillery; that the defendant removing the said complainant Berry afore- White as collector had never declared his insaid, until a vacancy therein is created by tention to appoint any one of the other delaw, and from assigning and appointing any fendants or anyone else a storekeeper or [370]*person to the same position, and from pro- gauger, knowing full well and recognizing ceeding in the attempt to make such removal the fact that storekeepers and gaugers are and in any other manner interfere with the and can be appointed by the Secretary of the said complainant Berry in the said office, as Treasury only; that the Secretary of the aforesaid." It was further adjudged, ordered, Treasury reinstated Hoult as gauger, Stauband decreed "that A. L. Hoult, John D. Sut-ley as storekeeper, and Thayer as gauger in ton, Anthony Stroubley, and all other per- 1897, in accordance with the laws of the Unitsons be, and they are hereby, enjoined and ed States and in accordance with the civil prohibited from acting as gauger in the service law, each having first been certified place and stead of the said complainant Ber-as eligible to such reinstatement by the Civil ry, as aforesaid, or in discharging any of the duties of the said office, until the further order of this court." nified or declared his intention to remove the Service Commission; and that Hoult, Sutton, Staubley, and Thayer had all been duly commissioned and executed bonds and qualified The answer of the defendants states that prior to the institution of this suit; and that on the 30th day of September, 1897, the Com- defendant White never declared his intenmissioner of Internal Revenue made an or- tion to reinstate any of said officers or assign der relieving plaintiff from assignment to them to duty in the place or the plaintiff, duty as gauger at the Hannis distillery, and recognizing fully that he had no such au on the same day telegraphed the plaintiff to thority, and that neither Hoult nor Staubley that effect; that on the same day the com- had been assigned to duty since their reinmissioner telegraphed defendant Thayer, as-statement. signing him to duty as gauger at that distil- The defendant White admitted that he was lery, and on the 1st day of October, 1897, he a Republican in politics, and the defendants took charge as such gauger, and was in admitted that the plaintiff was a Democrat charge when defendant White, collector, vis-in politics. White denied that he ever sig. ited the distillery on that day; that Thayer took charge before 8 o'clock in the morning of October 1, and before the granting of the injunction, and before any service upon or other notice of any kind of the granting of or application for the injunction to Thayer, White, or any of the defendants; that the recommendation of defendant White to the commissioner, that the plaintiff be relieved from duty as aforesaid, was made prior to the institution of this suit; that it has been the general policy of the Internal Revenue Bureau to rotate the assignments of storekeepers and gaugers for the purpose of securing to such storekeepers and gaugers a fair proportion of employment and for the purpose of preventing collusion between distillery offi- The defendants admitted that the office of cials, and otherwise protecting the interests gauger held by the plaintiff was in the classiof the government; that plaintiff having been fied service, and belonged to what was known on duty for a long time prior to the 30th as the Civil Service; but alleged that so far day of September, 1897, as gauger, it was as they knew the plaintiff had not been redeemed by the Commissioner fair and right moved, but on the contrary still held the poamong the several gaugers, and for the best sition of United States gauger; that the fact interests of the public service, to relieve that he had been relieved from assignment to plaintiff from assignment to duty at the Han-duty at the Hannis distillery did not remove nis distillery. him from office; that he might be assigned Admitting in their answer that the plain-to duty or transferred or nonassigned at any [371]tiff was an officer of the United States, duly time by the Commissioner of Internal Reve appointed and commissioned, and that he did nue; that the plaintiff could not in this mannot hold his position at the discretion of the ner question the right of the commissioner to collector of internal revenue, the defendant assign a United States gauger at a distillery White denied that the plaintiff was well or relieve one who has already been assigned; equipped and qualified to discharge all the that the Commissioner had the right to asduties of gauger, but that from the records sign to duty a United States gauger, and to of his office and of the department for the determine how long he shall remain on duty previous three months, during which he has under such assignment; and that no law, exbeen collector, the plaintiff was not a first-ecutive order, or rule or regulation of the class gauger, and was culpably careless in his work, and that it was largely because of information he had received that defendant White recommended to the commissioner that The defendants alleged that the revocation of assignment complained of by the plaintiff was made by the Commissioner, whom the defendants understood was a Democrat. Civil Service Commission was violated by the commissioner doing as he had done in this case in exercising the authority conferred upon him by the acts of Congress by assigning gauger to duty at the said distillery and relieving from duty the plaintiff, who had been theretofore assigned to duty at the same distillery by the commissioner and by the same act of Congress. The defendants admitted that the plaintiff was willing to continue in office, but the defendant White charged that he was a careless officer, and that if any attempt was or should be made to remove or dismiss him from the service, it would not be for the reason that he was of opposite politics to those of the collector. The answer concludes: misconduct of his; that during the late war[374] of the Rebellion he served in the military service of the United States, and was honorably discharged therefrom; that availing himself of rule 9 of the Civil Service regulations, he made application to the Secretary of the Treasury to be reinstated to the position from which he had been removed; that defendants are informed that said petition, together with the requisition of the proper officer of the Treasury Department, were referred to the Civil Service Commission, and his eligibility having been properly certified by said commission, he was reinstated and reappointed by "Replying to allegation No. 13 in plaintiff's the Secretary of the Treasury. Said petition bill, the defendants again say that the de- was originally filed with E. M. Gilkeson, late fendant White claims no right or authority collector of internal revenue, and, together to remove the said plaintiff from office or to with the recommendation of said collector, appoint anyone in his place, and that he forwarded to the Commissioner of Internal [373]ever has claimed any such authority. The Revenue. The defendants insist that in makdefendants say that the defendants Hoult, ing said appointment or reinstatement the Sutton, Staubley, and Thayer, having been Secretary of the Treasury acted in strict conduly appointed to the positions respectively formity with the acts of Congress and the held by each of them by the Secretary of the rules and regulations of the Civil Service Treasury, that the right to hold said posi- Commission. The defendants Sutton, Staubtions cannot be questioned in this or any ley, and Thayer were similarly reinstated other collateral proceeding; that the question and reappointed as storekeepers and gauger. of whether there were or were not vacancies The defendant A. B. White says that the at the time these appointments were made recommendation made by him to the Comcannot be determined in this suit. Neither missioner of Internal Revenue relative to the of said defendants Hoult, Sutton, Staubley, or plaintiff was made prior to or on the 29th Thayer was appointed in place of the plain- day of September, 1897, and the said recomtiff. The appointment of neither could affect mendation was made in part because the said the plaintiff, and whether the Secretary of the plaintiff had been on duty for some time, and Treasury has more of these officers in com- in part for the reasons herein before stated. mission than he is entitled to have under the Said defendants further say that they believe law is not a question which can be raised by and charge that the reinstatement and apthe plaintiff in this suit. It cannot be ascer-pointment of said defendants Hoult, Sutton, tained in this proceeding whether or not 15 per cent or any other number of officers are now in commission more than are sufficient to perform the duties of storekeepers or gaugers in this collection district. This court, it is respectfully suggested, will not undertake to ascertain the number of distilleries in operation and to be placed in operation in said collection district and the number of storekeep- The cause having been heard upon the bill, ers and gaugers to be placed on duty at such the demurrer to the bill, the answer and a distilleries. It is submitted that these are general replication thereto, the affidavits filed questions to be determined by the Treasury by the parties, and upon the plaintiff's motion Department, and must be supposed to have to perpetuate the injunction theretofore been determined before such appointments granted, a final order was made "restraining were made, and the appointments made in and inhibiting the defendant White, *the col-[375] conformity to the interests and requirements lector of the district, the appointing power, of the public service. Defendants therefore the defendant Thayer, and all others, from in deny that by the appointment of the defend- anywise interfering with the plaintiff H. C. ants Hoult, Sutton, Staubley, and Thayer Berry in the possession of his office and in the more storekeepers and gaugers were placed in discharge of his duty as gauger at the lannis commission than were sufficient to perform distillery, located in the town of Martinsthe duties of such officers in said district. burg, West Virginia, until he shall be re"The defendants deny that the appoint- moved therefrom by proper proceedings had ment and qualification of said Hoult, Sutton, under the civil service act and the rules and Staubley, and Thayer will make necessary regulations made thereunder or by judicial the removal of the plaintiff. The defendants, proceedings at law; and the said collector havfurther answering, say that the defendant ing applied heretofore to the court for leave Hoult was on the to the commissioner to appoint temporarily a gauger pending this litigation, he, the said collector, is required and directed to recommend and the Commissioner of Internal Revenue to transfer the temporary gauger heretofore assigned, and to permit the said gauger day of Staubley, and Thayer were not made by the Secretary of the Treasury for political reasons, nor was the plaintiff relieved from duty as aforesaid at the Hannis distillery by the Commissioner of Internal Revenue for political reasons, nor the said Thayer assigned to duty at the said distillery for political reasons." Berry undisturbed to discharge the duties of | would invade the domain of the courts of com. mon law, or of the executive and administra After referring to numerous authorities, Messrs. James E. Boyd, Assistant Attor-American and English, in support of the genney General, and Joseph H. Gaines for appellants. Mr. Charles J. Faulkner for appellee. Mr. Justice Harlan delivered the opinion of the court: eral proposition that a court of chancery had no power to restrain criminal proceedings, unless they had been instituted by a party to a suit already pending *before it, and to try the[377] same right that was in issue there, the court proceeded: "It is equally well settled that a In the opinion delivered by the learned dis- court of equity has no jurisdiction over the trict judge, who heard this and other cases appointment and removal of public officers, involving the same questions as those now whether the power of removal is vested, as presented, it was held: 1. That the act known well as that of appointment, in executive or as the "Civil Service act" was constitutional. administrative boards or officers, or is in2. That Congress has not delegated to the trusted to a judicial tribunal. The jurisdicPresident and the commission legislative pow-tion to determine the title to a public office ers. 3. That by rule 3, § 1, the internal rev-belongs exclusively to the courts of law, and enue service has been placed under the Civil is exercised either by certiorari, error or apService act and rules made in pursuance of peal, or by mandamus, prohibition, quo warit. 4. That the plaintiff's in these actions are ranto, or information in the nature of a writ officers of the government in the internal of quo warranto, according to the circumrevenue service. 5. That they cannot be re- stances of the case, and the mode of procedmoved from their positions except for causes ure established by common law or by statute. other than political, in which event their re- No English case has been found of a bill for moval must be made under the terms and an injunction to restrain the appointment or provisions of the Civil Service act and the removal of a municipal officer. But an an[376]rules promulgated under it, which, under the formation in the court of chancery for the act of Congress, became a part of the law. regulation of Harrow School within its un6. That the attempt to change the position doubted jurisdiction over public charities was and rank of the officers in these cases was in dismissed so far as it sought a removal of gov violation of law. 7. That a court of equity ernors unlawfully elected, Sir William Grant has jurisdiction to restrain the appointing saying: "This court, I apprehend, has no jupower from removing the officers from their risdiction with regard either to the election or positions if such removals are in violation of the Civil Service act. 83 Fed. Rep. 578. amotion of corporators of any description.' Attorney General v. Earl Clarendon, 17 On behalf of the government it is insisted Ves. Jr. 491. In the courts of the several that the circuit court of the United States, states the power of a court of equity to resitting in equity, was without jurisdiction strain by injunction the removal of a munito entertain this suit and to grant the relief cipal officer has been denied in many wellasked in the bill. If this position be well considered cases,"-citing Tappan v. Gray, 3 taken, it will be unnecessary to consider the Edw. Ch. 450, reversed by Chancellor Walother questions discussed in the able and elaborate opinion of the district judge. In Sawyer's Case, 124 U. S. 200, 223 [31: 402, 410], Chief Justice Waite in a dissenting opinion said that he was not prepared to hold that an officer of a municipal government could not, under any circumstances, apply to a court of chancery to restrain the municipal authorities from proceeding to remove him from his office without authority of law; that there might be cases when the tardy remedies of quo warranto, certiorari, and other like writs would be entirely inadequate. In that view of the jurisdiction of equity the writer of this opinion concurred at the time the court disposed of that case. But the court in its opinion in that case observed that under the Constitution and laws of the United States the distinction between common law and equity, as existing in England at the time of the separation of the two countries, had been maintained, although both jurisdictions were vested in the same courts, and held that a court of equity had no jurisdiction over the appointment and re moval of public officers, and that to sustain a bill in equity to restrain or relieve against proceedings for the removal of public oflicers worth on appeal, 9 Paige, 507, 509, 512, whose The rule established in Sawyer's Case was If the assignment of some one to duty as gauger at the Hannis distillery, in the place |